State v. Anderson

• Decision Date: 07 June 1886
• Citation: 89 Mo. 312,1 S.W. 135
• Parties: STATE v. ANDERSON and another.
• Court: Missouri Supreme Court

1 S.W. 135

89 Mo. 312

STATE v. ANDERSON and another.

Supreme Court of Missouri.

June 7, 1886.

1. HOMICIDE — MURDER — INDICTMENT — PRINCIPAL AND ACCESSORY.

At the common law, and also under the statutes of Missouri, (sections 1649-1651, Revision 1879,) all are principals in the crime of murder, and it is immaterial whether a joint indictment charges them as such, or as principal and accessory.

2. CRIMINAL LAW — TRIAL — EVIDENCE OF DEFENDANT.

While the prosecution is not allowed to comment on the mere neglect of the accused to testify in his own behalf, yet, if he does exercise his privilege by taking the witness stand, his testimony is to be judged precisely like any other witness'.

Appeal from Carroll circuit court.

Joint indictment of principal and accessory for murder.

The Attorney General, for the State. L. H. Waters and J. W. Stebree, for appellants, Joel E. Anderson and another.

SHERWOOD, J.

The defendants were indicted for the murder of John Rea, the indictment charging Anderson as the principal and Baugh as accessory. The crime was charged to have been committed by shooting with a shot-gun, and, on being tried, they were convicted of murder in the first degree, and sentenced accordingly. At a former trial they were convicted of murder in the second degree, but, on appeal, that judgment was reversed because of the absence of certain instructions which there is every reason to believe that the trial court gave, but which were not incorporated in the bill of exceptions. The cause is again here on appeal, counsel for defendants assigning several errors, — errors relating to the grade of the crime of which the defendants were convicted; the failure of the evidence to show deliberation and malice; the giving of improper instructions on behalf of the state; the failure to properly instruct the jury on behalf of the defendants; the failure to admit proper testimony offered by defendants; and the failure of the evidence to show that Baugh was guilty of any grade of homicide.

1. The constitutional point raised by counsel for defendants, that having been found guilty of murder in the second degree, thereby they go forever acquit of murder in the first degree, and cannot again be tried therefor, has been otherwise ruled in State v. Simms, 71 Mo. 538.

2. The evidence in the cause, briefly told, is this: About 6 o'clock on the evening of April 8, 1884, the reports of three shots were heard to proceed from, or in the immediate vicinity of, Baugh's cabin. The second shot — the loudest, and from a gun, the blaze from which came from the cabin door — was seen by Mrs. Singleton, whose house was something like 100 yards from Baugh's cabin, in a south or south-east direction; and as the second shot was fired she saw Rea, who had gone in the direction of the cabin about two minutes before, stoop or fall, and then defendants ran out of the cabin, — Anderson out by the cellar, in front of the cabin door, and Baugh around the cabin; and when she turned from her door where she had gone on the report of the first shot, and went back into the hall, she heard the third shot. Her husband's testimony is of similar import. He saw Rea leave witness' house, start in direction of Baugh's cabin, and, in about two minutes thereafter, heard two shots in quick succession, the second the louder; whereupon he ran around his house, and towards Baugh's cabin, and when he had gone some 30 or 40 steps in that direction he saw Baugh run around the cabin, and Anderson in front of the door; then heard the third shot, after Baugh ran around the cabin; and, on arriving at the cabin, he saw Anderson, and then saw Baugh come around the cabin, and in his hand was a pistol, which he laid down with both hands on a bench by the side of the house. He found Rea lying on his left side near the door, dead, with his left arm extended, holding his hat in his left hand, his right arm over his body, his clothing on his right breast afire, and a wound on his left shoulder. Upon Singleton's asking who killed Rea, Anderson said: "We did it, — I did it." Said that Rea had tried to break the door open, and then shot at Baugh twice, — then came at him; that Rea jerked the pistol out of Baugh's hands; then shot at him twice; that he cut Baugh, and came at him; that Anderson said nothing about being cut, nor did witness see any blood, cuts, or wounds on either of them; but Baugh, after he had left the cabin, and was going past the mill, some 160 to 180 yards away, and walking rapidly, said he was cut too bad to get away. Singleton did not know whether a large pocket-knife was there when he first went to the cabin or not; that the shotgun was lying on the bed; that nothing unusual appeared in the cabin, which was about 12 by 14 feet, and contained a bed, table, and stove; that Anderson left first, and Baugh a minute afterwards; that they left about two minutes after witness got there; that witness ran over to the mill, and on his return found Moore, who had mean while come, putting out the fire which was burning the clothing on Rea's breast. Other testimony in the cause corroborated the testimony of Singleton and wife as to the number of shots fired, and as to the rapidity and nature of the reports.

When Dr. Grant, the coroner, arrived at Baugh's cabin, about 2 o'clock the same evening, he found a large pocket-knife, half open, lying on the door-step. This had no blood stains on it, and when handed by the coroner to Snider, who was also present, tobacco crumbs fell out of it. No weapon, knife, or pistol was found in Rea's hands, or on his person, and a wound was found in the left shoulder, back of the top of the shoulder, about the size of the bottom of a tea-cup, which penetrated downwards and inwards, and the shot taken from it was about the size of turkey shot, and the indications were that when shot he was stooping forward, facing the man who shot him, who was above him. Rea had no coat on, and his clothing on his right breast had been burned, and there was a burn on that breast; and one of the witnesses states that there was a wound on that breast, as well as a bruise about an inch and a half long. The bed in the cabin was out in the floor, on blocks. Dishes, lamp, and a bucket of water were on the table, and no indications of any disturbance were found about the room, nor any marks or stains about the house; and Baugh's shotgun was found on the bed in the cabin, with one barrel discharged, and his revolver, with three chambers empty, was found on a box on the east side of the cabin. The only door in the cabin was on the west side. It opened on the inside, on the right, as you came in; was about four and one-half feet high; was reached by a step about sixteen inches in height; and from the top of the door a strip had been freshly sawed, the width of the door, and about one-quarter of an inch wide, the sawdust yet remaining on the step. A piece of the chinking had been knocked out in the south-west corner of the cabin, and from this opening a man could be seen coming from Singleton's house. Tracks, 30 or 40 in number, apparently made by Rea as he came from the direction of Singleton's house, were plainly visible in the sand where his body lay, some two feet from the door, and they stopped at the body; and there were marks in the sand made by Rea's heels as he turned and fell. This is the testimony of a witness who went to the cabin only four or five minutes after the shooting occurred. The knife found on the door-step was proven to have been borrowed by Rea, the day before he was killed, from Hill, with whom he was at work, in order to fix his harness.

Rea had formerly lived with Baugh, and, after a difference and lawsuit had occurred between them, had moved over to Singleton's, leaving a bedstead and mattress at Baugh's. Threats frequently made by Baugh towards Rea's life, in case he came to the cabin again, were testified to, some of them occurring but a few days before the homicide. Threats, also, on the part of Rea towards Baugh, made some month or more before the fatal occurrence, were proven, but were not so pronounced in their nature as those of Baugh. It was also in evidence that Rea, on the morning of the eighth of April, went over to Baugh's cabin. What then occurred between Baugh and the deceased is not known, but at a subsequent period Baugh made a statement to Mr. Jewell, editor of the Democrat, that Rea had been to his house that day, and said he was coming back that evening after his bedstead.

The evidence further discloses that Anderson and Baugh are cousins, Anderson living two miles from Baugh's; that Baugh went in the morning, on the eighth of April, to Anderson's house; went away, and returned again, and remained there from about noon till about 4 P. M. Anderson was having the chills; had one that day, and was covered up in bed. It was a cold, blustering, raw afternoon. The wind was blowing quite hard, a sudden cold north wind having sprung up about 3:30, when Anderson got out of bed, and accompanied Baugh to his cabin. They had arrived there by 5 P. M.; for Mrs. Singleton says they passed her house that afternoon; and Murphy says they passed his house about 4 o'clock that afternoon, going towards the mill; and Trotter passed within three feet of the corner of the cabin on his return from Cary's, and when he did so saw the door closed, and heard the voice of Baugh and some one else inside, his attention being attracted thereto by hearing "the door creak;" and in about two minutes thereafter, when he had gone his way, he heard the shots fired. There was evidence, also, that Baugh was seen just after the homicide, by one who met him about 250 yards from his cabin, walking pretty fast; that he did not speak, and no blood or cuts were seen upon him; and it was shown in evidence that Anderson had subsequently admitted that Baugh, on the day of the killing, had told him there was to be a row or difficulty that night, or the next, and...